Citation Nr: 23019366
Decision Date: 03/29/23	Archive Date: 03/29/23

DOCKET NO. 18-02 835
DATE: March 29, 2023

ORDER

Entitlement to service connection for muscle pain is denied.

Entitlement to service connection for a bilateral shoulder condition is denied.

Entitlement to service connection for an elbow condition is denied.

Entitlement to service connection for a bilateral wrist condition is denied.

Entitlement to service connection for a bilateral hand condition is denied.

Entitlement to service connection for a finger disability is denied.

Entitlement to service connection for a spine condition is denied.

Entitlement to service connection for a bilateral hip condition is denied.

Entitlement to service connection for a bilateral knee condition is denied.

Entitlement to service connection for a bilateral ankle condition is denied.

Entitlement to service connection for a bilateral foot condition is denied.

Entitlement to service connection for a bilateral toe disability is denied.

Entitlement to service connection for a bilateral heel condition is denied.

Entitlement to service connection for chronic fatigue syndrome (CFS) is denied.

Entitlement to service connection for sleep disturbances is denied.

FINDINGS OF FACT

1. The Veteran's muscle pain symptoms are not shown to onset in service, be related to service, or be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness.

2. The Veteran's bilateral shoulder symptoms are not shown to onset in service, be related to service, or be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness.

3. The Veteran's elbow symptoms are not shown to onset in service, be related to service, or be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness.

4. The Veteran's bilateral wrist symptoms are not shown to onset in service, be related to service, or be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness.

5. The Veteran's bilateral hand symptoms are not shown to onset in service, be related to service, or be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness.

6. The Veteran's finger symptoms are not shown to onset in service, be related to service, or be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness. 

7. The Veteran's spine symptoms are not shown to onset in service, be related to service, or be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness.

8. The Veteran's bilateral hip symptoms are not shown to onset in service, be related to service, or be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness.

9. The Veteran's bilateral knee symptoms are not shown to onset in service, be related to service, or be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness.

10. The Veteran's bilateral ankle symptoms are not shown to onset in service, be related to service, or be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness.

11. The Veteran's bilateral foot symptoms are not shown to onset in service, be related to service, or be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness. 

12. The Veteran's bilateral toe symptoms are not shown to onset in service, be related to service, or be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness.

13. The Veteran's bilateral heel symptoms are not shown to onset in service, be related to service, or be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness.

14. The Veteran's chronic fatigue symptoms are not shown to onset in service, be related to service, or be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness.

15. The Veteran's sleep disturbance symptoms are not shown to onset in service, be related to service, or be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness.

CONCLUSIONS OF LAW

1. The criteria for service connection for a muscle condition, to include as due to undiagnosed illness or chronic multisymptom illness, have not been met. 38 U.S.C. § 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.317.

2. The criteria for service connection for a bilateral shoulder condition, to include as due to undiagnosed illness or chronic multisymptom illness, have not been met. 38 U.S.C. § 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.317

3. The criteria for service connection for an elbow condition, to include as due to undiagnosed illness or chronic multisymptom illness, have not been met. 38 U.S.C. § 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.317

4. The criteria for service connection for a bilateral wrist condition, to include as due to undiagnosed illness or chronic multisymptom illness, have not been met. 38 U.S.C. § 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.317

5. The criteria for service connection for a bilateral hand condition, to include as due to undiagnosed illness or chronic multisymptom illness, have not been met. 38 U.S.C. § 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.317

6. The criteria for service connection for a finger condition, to include as due to undiagnosed illness or chronic multisymptom illness, have not been met. 38 U.S.C. § 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.317

7. The criteria for service connection for a spine condition, to include as due to undiagnosed illness or chronic multisymptom illness, have not been met. 38 U.S.C. § 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.317

8. The criteria for service connection for a bilateral hip condition, to include as due to undiagnosed illness or chronic multisymptom illness, have not been met. 38 U.S.C. § 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.317

9. The criteria for service connection for a bilateral knee condition, to include as due to undiagnosed illness or chronic multisymptom illness, have not been met. 38 U.S.C. § 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.317

10. The criteria for service connection for a bilateral ankle condition, to include as due to undiagnosed illness or chronic multisymptom illness, have not been met. 38 U.S.C. § 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.317

11. The criteria for service connection for a bilateral foot condition, to include as due to undiagnosed illness or chronic multisymptom illness, have not been met. 38 U.S.C. § 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.317

12. The criteria for service connection for a bilateral toe condition, to include as due to undiagnosed illness or chronic multisymptom illness, have not been met. 38 U.S.C. § 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.317.

13. The criteria for service connection for a bilateral heel condition as due to undiagnosed illness have not been met. 38 U.S.C. § 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.317.

14. The criteria for service connection for a chronic fatigue condition, to include as due to undiagnosed illness or chronic multisymptom illness, have not been met. 38 U.S.C. § 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.317.

15. The criteria for service connection for a sleep condition, to include as due to undiagnosed illness or chronic multisymptom illness, have not been met. 38 U.S.C. § 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.317.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty service from July 1992 to August 1996, including service in the Southwest Asia Theater from August 1995to November 1995.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2019 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).

In May 2019, the Board remanded these claims for additional development which has been completed. The appeal was last adjudicated in a May 2020 supplemental statement of the case, including an October 2020 VA examination for fibromyalgia.  Since then, the VA has added new and pertinent evidence to the claims on appeal.  In October 2022, the Veteran expressly waived consideration of all new evidence by the agency of original jurisdiction (AOJ).  Accordingly, the Board will review this evidence in the first instance.

Service Connection

1. Entitlement to service connection for muscle pain

2. Entitlement to service connection for a bilateral shoulder condition

3. Entitlement to service connection for a bilateral elbow condition

4. Entitlement to service connection for a bilateral wrist condition

5. Entitlement to service connection for a bilateral hand condition

6. Entitlement to service connection for a finger disability

7. Entitlement to service connection for a spine condition

8. Entitlement to service connection for a bilateral hip condition

9. Entitlement to service connection for a bilateral knee condition

10. Entitlement to service connection for a bilateral ankle condition

11. Entitlement to service connection for a bilateral foot condition

12. Entitlement to service connection for a bilateral toe disability

13. Entitlement to service connection for a bilateral heel condition

14. Entitlement to service connection for chronic fatigue syndrome (CFS)

15. Entitlement to service connection for sleep disturbances

The Veteran seeks service connection for diffuse joint pain (claimed bilateral shoulder, elbow, finger, hip, knee, ankle, foot, toe, and heel conditions, and spinal condition), muscle pain, chronic fatigue, and sleep disturbances. His wife reported severe pain in the spine, both shoulders, both elbows, wrists, hands, hips, knees, and ankles. She stated that more than once a week she helped him from the floor, and that he dropped things from his hands freezing up. 

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303.  The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury.  Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004).

Service connection may also be established for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability resulting from undiagnosed illness that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021 and cannot be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1).

In claims based on qualifying chronic disability, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1 (2004). Notably, laypersons are competent to report objective signs of illness.

A qualifying chronic disability for VA purposes is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multisymptom illness (MUCMI) (such as chronic fatigue syndrome (CFS), fibromyalgia, or functional gastrointestinal disorders) that is defined by a cluster of signs or symptoms, or (C) any diagnosed illness that VA determines in regulation prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service connection. 38 U.S.C. § 1117 (a)(2); 38 C.F.R. § 3.317 (a)(2)(i)(B).

Objective indications of chronic disability include both signs, in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification. Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; and (12) abnormal weight loss. 38 C.F.R. § 3.317 (b). If signs or symptoms have been medically attributed to a diagnosed (rather than undiagnosed) illness, the Persian Gulf War presumption of service connection does not apply. See VAOPGCPREC 8-98. 

The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease.

Service treatment records reflect intermittent treatment for pain and other injuries. In March 1994, the Veteran presented with low back pain and lumbosacral strain after he fell down some stairs. In March 1995, the Veteran presented with a hyperextended left knee injury. In February 1996, the Veteran presented for left knee pain after a basketball injury. The Veteran's separation examination revealed normal clinical findings. In his report of medical history at separation, the Veteran indicated that he was in good health. He denied swollen or painful joints, painful or trick shoulder or elbow, recurrent back pain, trick or locked knee, or frequent trouble sleeping.

Post-service treatment records reflect persistent complaints of chronic pain and arthralgia. In May 2010, medical history showed arthralgia of the knees, hips, and neck. In September 2011, the Veteran reported chronic pain in his knees, hips, and shoulders for the previous 5 years. He related that he worked as a construction worker, and had severe pain and muscle spasms at the end of the day.

The Veteran was afforded an evaluation by Social Security Administration (SSA) in November 2014. The Veteran reported joint and muscle pain. Physical examination revealed pain with movement, but no spasm, trigger points, or crepitus. The clinician diagnosed generalized myalgias and arthralgias, by report.

The Veteran underwent a VA examination in December 2017. The examiner opined that there was no evidence for an undiagnosed illness, a MUCMI, or a diagnosable chronic multisymptom illness with partially explained etiology. The examiner indicated there was no pathology or diagnosis found of any of the claimed conditions including fatigue, muscle pain, and joint pain. However, the examiner indicated that this did not imply that there was a condition that is undiagnosed. Instead, the examiner stated that there was no condition to be diagnosed. Thus, the examiner concluded that the Veteran's conditions are less likely as not related to a specific exposure event experienced by the Veteran during service in Southwest Asia. 

The Board remanded the appeal for an opinion as to whether the Veteran's muscle and joint pain was a manifestation of an undiagnosed illness or MUCMI. The Board explained that lay persons are competent to report manifestations of undiagnosed illnesses, in pertinent part by way of muscle and joint pain. The examiner was also directed that if the Veteran's muscle and joint pain was not an undiagnosed illness or MUCMI, the examiner was to indicate whether any identified pain in any of the joints at issue in this case rises to the level of functional impairment of earning capacity and is at least as likely as not is due to the Veteran's military service.

In June 2019, a VA examiner reviewed the Veteran's claim file. The examiner opined that there was no undiagnosed illness or MUCMI. The examiner explained that the most likely etiology for the Veteran's widespread pain was due to physical inactivity and not due to any underlying diagnosed or undiagnosed pathological process. Physical examinations had been normal, medical work up had been normal, and the weight of medical literature supported that a major etiology for diffuse widespread pain is inactivity.  Physical mobilization, particularly joint mobilization, are the gold standard of treatment to completely alleviate the widespread pain. In this case, the Veteran had had only two physical therapy sessions but had not engaged in any exercise program. The examiner noted that the Veteran subjectively believes that increased activity will exacerbate his symptoms, but found that this belief was inconsistent with the medical literature on the subjective. The examiner further noted the description of swelling by the Veteran and his wife, but explained that the Veteran had been worked up and found to have no conditions in any of his joints that would lead to joint effusions. There was no pathology or diagnosis of any foot condition, heel condition, toe condition, hand condition, or finger condition. The Veteran complained of muscle spasms in 2011, but had not complained again of muscle spasms. Thus, the examiner concluded it did not appear to be a chronic part of the Veteran's overall symptomatology. With respect to sleep disturbance and fatigue, the examiner noted that the Veteran had been referred to sleep medicine twice and diagnosed with possible sleep apnea. A polysomnogram had been scheduled, but the Veteran did not proceed with work up of his sleep symptoms. Thus, the examiner did not provide a diagnosis but indicated that it was not consistent with an undiagnosed illness. 

The examiner noted diagnoses of fibromyalgia in the underlying treatment record. However, the examiner indicated that this was often over-diagnosed by providers who were not trained in rheumatological diseases or pain management. The examiner explained that it takes more than complaints of pain to be correctly diagnosed with fibromyalgia, that the Veteran's primary care provider did not document the formal diagnostic criteria, and further that the Veteran did not meet the diagnostic criteria. Thus, the examiner concluded that the Veteran had been diagnosed solely on the basis of pain symptoms.  

The examiner concluded that, with respect to complaints of widespread joint and muscle pain there was no diagnosis rendered, no undiagnosed illness found, no medically unexplained chronic multisymptom illness found, no evidence for chronicity, and no nexus to military service. With respect to sleep disturbance and fatigue, there was a potential underlying diagnosis of sleep apnea but insufficient work up to confirm, no undiagnosed illness found, no medically unexplained chronic multisymptom illness, and no nexus to military service. The most likely etiology was obstructive sleep apnea or other sleep disorder diagnosable with a polysomnogram.

The Veteran was afforded a VA examination in September 2020. The examiner diagnosed myalgia. However, the examiner remarked that there was no diagnosis of fibromyalgia, because there were no findings, signs, or symptoms to support a diagnosis.

Given the above, service connection is not warranted. The Veteran has not exhibited objective indications or symptoms of a qualifying undiagnosed illness or MUCMI indicative of a bone, joint, or muscle condition. 38 U.S.C. §§ 1110, 5107; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 U.S.C. § 1117; 38 C.F.R. § 3.317.

While the Veteran believes he has a current diagnosis of a joint and muscle, or sleep condition, he is not competent to provide such a diagnosis. These conditions are medically complex, and rendering a diagnosis requires specialized medical education and knowledge and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007).

Consequently, the Board gives more probative weight to the competent medical evidence. The December 2017 and September 2020 VA examinations determined that there was no pathology, findings, signs, and/or symptoms to support a diagnosis. The June 2019 VA examiner opined that the Veteran's symptoms were most likely due to physical inactivity. The examiner concluded that the Veteran's symptoms were not at least as likely as not related to an in-service injury, an undiagnosed illness, or a MUCMI. The examiner noted possible fatigue and sleep disturbances were possibly related to sleep apnea. Additionally, while the Veteran is competent to report symptoms observable to a lay person, such as fatigue or joint pain, the Board finds that the VA examination report attributed the Veteran's generalized pain complaints to physical inactivity. The examiners opinions are probative, because they are based on an accurate medical history and provide explanations that contain clear conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).

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Accordingly, the evidence is persuasively against the claim.  As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for diffuse joint pain (claimed bilateral shoulder, elbow, finger, hip, knee, ankle, foot, toe, and heel conditions, and spinal condition), muscle pain, chronic fatigue, and sleep disturbances is not warranted.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

 

J. NICHOLS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	D. Lauritzen, Associate Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.